Cohen v. United States

• Decision Date: 16 December 1966
• Docket Number: No. 5-62 to 7-62.,5-62 to 7-62.
• Citation: 177 Ct. Cl. 599,369 F.2d 976
• Parties: Joseph COHEN v. The UNITED STATES. John V. COUGHLIN v. The UNITED STATES. David M. GOODMAN v. The UNITED STATES.
• Court: U.S. Claims Court

177 Ct. Cl. 599, 369 F.2d 976 (1966)

Joseph COHEN v. The UNITED STATES.

John V. COUGHLIN v. The UNITED STATES.

David M. GOODMAN v. The UNITED STATES.

Nos. 5-62 to 7-62.

United States Court of Claims.

December 16, 1966.

James E. Murray, Washington, D. C., for plaintiffs; John J. Ross, Washington, D. C., attorney of record; Hogan & Hartson, Washington, D. C., of counsel.

Edwin J. Reis, Washington, D. C., with whom was Asst. Atty. Gen. John W. Douglas, for defendant.

Before COWEN, Chief Judge, and LARAMORE, DURFEE, DAVIS, and COLLINS, Judges.

OPINION

COLLINS, Judge:

These are three separate suits brought by former customs inspectors of the United States Customs Service, alleging illegal suspension and discharge from the Customs Service, based upon violation of their rights under the Veterans' Preference Act.¹ Recovery is sought for back pay from the time of their suspension. The actions were consolidated by order of this court under former Rule 38(a) (now Rule 47(a)). Joint trial proceedings followed, and findings of fact based thereon have been submitted by the commissioner. Those findings, subject to certain additions, have been adopted by the court and are set forth infra. We conclude, upon evaluation of the record in its entirety, that plaintiffs are not entitled to recover.

The factual background reveals that plaintiffs' dismissals were based upon their failure to have conducted proper baggage examinations which, in each instance, permitted the introduction of contraband merchandise into the United States. As a common factual element, the claims bring into focus the smuggling activities of one Domenico Guarna, an importer, whose illegal trafficking was sustained, in part, by the negligence of the present plaintiffs. The claims relate to separate and independent transactions.

Under surveillance at the time of his arrival at the Port of New York on October 1, 1957, Guarna, after clearance through customs, was approached by a customs agent who requested a further look at the importer's luggage. This examination revealed the existence of dutiable merchandise which Guarna had failed to declare and which the customs inspector had failed to discover. Guarna was arrested at that point. He submitted to questioning and permitted a search of his business premises. The evidence thereby obtained, studied in conjunction with his prior activities, led to the disclosure of a smuggling conspiracy and eventually to Guarna's criminal prosecution and conviction.

Alerted to the possibility of wholesale misconduct among its inspectors, the Customs Bureau commenced an investigation which involved 20 customs inspectors. Of these, a number, including plaintiffs, were removed from their positions. The particulars of each claim involved herein are as follows. We deal first with plaintiff Cohen.

Joseph Cohen

The facts elicited from Guarna, when first questioned on October 1, 1957, disclosed his illegal liaison with one William Lev, a customs inspector, whose unlawful actions had, in conjunction with those of other inspectors, facilitated Guarna's smuggling during the prior 2 years. Among the incidents to which Guarna had referred was his arrival at the Port of New York on September 25, 1956. He acknowledged that on this occasion a bribe was subsequently paid to an Inspector Mandel for permitting the passage of contraband merchandise through customs, this passage being assured through an arrangement previously worked out between Lev and the inspector who conducted the baggage check. A subsequent check of prior records disclosed that Guarna's baggage examination of September 25, 1956, had actually been performed by plaintiff Cohen. It further revealed that Guarna had arrived on this date with five trunks and six other pieces of baggage and that as articles declared he had listed "silk swatches of no commercial value" with a fair value of $50, on which $9.75 duty was paid. As revealed by the baggage declaration, three of these pieces were examined — this minimum number being in apparent compliance with the "spot check" system that had been ordered for the day in question.² However, the true contents of Guarna's baggage, as determined by reference to his office records, which were examined on October 1, 1957, revealed undeclared merchandise valued at approximately $22,693 on which an approximate duty of $8,658 should have been paid.

On October 11, 1957, plaintiff Cohen was questioned. He denied, in a sworn statement, that he knew Guarna; he indicated that he had no recollection of having greeted Guarna at the time of the latter's arrival on October 1, 1957, although he could not say with certainty that in the course of his daily work he had not shaken hands with an individual who might perhaps have been Guarna. No immediate action was taken against Cohen, although the agency was apparently then in possession of information, based upon observations of agents of the Bureau of Customs, that Cohen had approached Guarna on October 1, 1957, had greeted him in a friendly manner, and had engaged him in a short conversation. However, on November 5, 1957, the agency did prefer charges, which, as set forth in a letter forwarded to Cohen by the Commissioner of Customs, proposed plaintiff's removal on two grounds. First, it charged —

* * * misconduct in that on September 25, 1956, you were assigned to baggage examination duty on the arrival of the SS Cristoforo Colombo. Domenico Guarna, a passenger on the SS Cristoforo Colombo on September 25, 1956, had arranged with Inspector Lev for his baggage to be cleared without the payment of duty on the merchandise. He was introduced to you by Inspector Lev, and Lev told him that you would clear his baggage. Mrs. Domenico Guarna and Mr. Rodolfo Nocita were present. You cleared and passed 13 pieces of baggage on dutiable declaration number 24577 filed by Domenico Guarna as a returning resident on September 25, 1956. The baggage declaration shows you examined 3 pieces of baggage. Merchandise valued at $130 was declared by Guarna and duty assessed in the sum of $9.75 on silk swatches declared at $50. A spot check of baggage was ordered for this vessel. Guarna\'s baggage on this arrival contained undeclared merchandise valued at approximately $22,693 on which approximate duty would be $8,658. Your failure to properly examine Guarna\'s baggage on September 25, 1956, led to the illegal introduction of this merchandise into the United States and loss of revenue approximating $8,658.

Secondly, the letter charged Cohen with making —

* * * a false statement under oath in the office of the supervising customs agent at New York on October 11, 1957, when you stated that you did not know Domenico Guarna. On October 1, 1957, when Guarna arrived at New York you greeted him with a handshake and spoken greeting, in a very friendly manner, on pier 84, N.R., as observed by Customs Agents McVeigh and Huffman.

The letter advised Cohen that it was a notification of proposed adverse action, undertaken in accordance with section 14 of the Veterans' Preference Act of 1944. It further advised that said act's provision regarding "at least 30 days' advance written notice" was not applicable because there existed reasonable grounds to believe that Cohen was guilty of a crime for which a sentence of punishment could be imposed. Cohen was granted 24 hours in which to respond to his proposed suspension and a 5-day period in which to respond formally to the charges against him.

His denial of the charges was followed by a personal appearance before the Acting Commissioner of Customs in Washington, D. C., on November 12, 1957. This office sustained the charges and advised Cohen of his removal, effective as of December 8, 1957; an appeal to the Civil Service Commission followed. However, due to the pendency of criminal proceedings that had been undertaken in connection with the smuggling activities at the Port of New York, Cohen's appeal was held in abeyance at the request of the United States Attorney for the Southern District of New York. In this connection, it is noted that these criminal proceedings also included Cohen, his indictment resting upon the grounds heretofore mentioned, i. e., alleged complicity in a smuggling conspiracy between Guarna and Customs Bureau employees. Though this indictment was subsequently quashed on October 27, 1959, Cohen's appeal before the Civil Service Commission was not heard until September 25, 1960.

In affirming plaintiff Cohen's suspension and removal, the Civil Service Commission rested, in substance, on the grounds set forth in the charges initially invoked, i. e., an improper examination and a false denial of knowing Guarna. The decision, dated November 3, 1960, reads, in pertinent part, as follows:

* * * It is the further opinion of this office that it is no answer to the charge for the appellant to refer to the spot check order, state merely that he examined about 25% of Guarna\'s luggage and that he had thereby satisfied his responsibilities. As a Customs Inspector, his responsibility was more extensive than the examination of 1, 2, or 6 pieces out of a larger amount of luggage. According to his task statement and position description, one of his "primary duties" was the enforcement of laws governing the importation of merchandise and he had constantly to observe the unusual condition of goods indicative of attempts to violate the laws. Any reasonable man, other than a Custom Inspector, with a modicum of curiosity would, on the basis of the information available on September 25, have been constrained to inquire (and examine) into the contents of at least one of the several large steamer-type trunks carried by Guarna. The available information was cogent and compelling. Guarna was carrying a large amount of luggage after a brief sojourn abroad; he acknowledged on the declaration that he had in his possession articles for sale or sample which were dutiable; and of particular

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